The functions and failings of the Abortion Supervisory Committee: A Critique of the New Zealand Supreme Court Decision in Right to Life New Zealand Inc v The Abortion Supervisory Committee

<p>In 2012 the Supreme Court of New Zealand ruled on Right to Life New Zealand Inc v The Abortion Supervisory Committee. The case was brought by way of application for judicial review, with Right to Life New Zealand Inc arguing that the Supervisory Committee had made an error of law in interpreting its functions under the Contraception, Sterilisation, and Abortion Act 1977. A majority of the Court held that the Supervisory Committee does not have the power to review decisions made by certifying consultants in individual cases. However, both the text and the purpose of the Act support the minority view, that the Supervisory Committee must seek information about individual cases in order to fulfil its functions under the Act. It appears that the majority judgment was motivated by policy concerns due to an arguable change in Parliamentary intent since 1977. The majority should have acknowledged the policy values that guided its decision or accorded with the minority view rather than straining the statutory wording. Either of those actions would have better prompted Parliament to reform the law to reflect modern circumstances.</p>

The functions and failings of the Abortion Supervisory Committee: A Critique of the New Zealand Supreme Court Decision in Right to Life New Zealand Inc v The Abortion Supervisory Committee

<p>In 2012 the Supreme Court of New Zealand ruled on Right to Life New Zealand Inc v The Abortion Supervisory Committee. The case was brought by way of application for judicial review, with Right to Life New Zealand Inc arguing that the Supervisory Committee had made an error of law in interpreting its functions under the Contraception, Sterilisation, and Abortion Act 1977. A majority of the Court held that the Supervisory Committee does not have the power to review decisions made by certifying consultants in individual cases. However, both the text and the purpose of the Act support the minority view, that the Supervisory Committee must seek information about individual cases in order to fulfil its functions under the Act. It appears that the majority judgment was motivated by policy concerns due to an arguable change in Parliamentary intent since 1977. The majority should have acknowledged the policy values that guided its decision or accorded with the minority view rather than straining the statutory wording. Either of those actions would have better prompted Parliament to reform the law to reflect modern circumstances.</p>

The Arbitral Award in the Enrica Lexie Case and its Questionable Recognition of Functional Immunity to the Italian Marines Under Customary International Law

The dispute between Italy and India on the Enrica Lexie incident has finally been decided by the Award handed down on 21 May 2020 by the Arbitral Tribunal to which the Parties had referred the case. After having concluded that it had jurisdiction on the issue of the immunity of the two Italian marines involved in the case at hand, the majority judgment (by three votes to two) affirmed that under customary international law the latter enjoyed functional immunity from the criminal jurisdiction of India. This article will argue that the Arbitral Tribunal’s conclusions are unconvincing, first and foremost, considering that, based on State practice, it is not possible to affirm without reservations that a settled customary rule exists under international law conferring immunity to all State officials, and regardless of the type of functions they perform. In fact, immunity has often been recognized as applying only to certain categories of State officials, and on the basis of the governmental nature of the functions they perform on behalf of the State. Given the doubtful existence under customary international law of a clear rule establishing the functional immunity of all State officials, for all the acts performed in the exercise of their functions, this article argues that the Arbitral Tribunal should have firstly ascertained the existence of a specific customary rule on the immunity of the military abroad, together with the exact content of such rule and, secondly, whether this was applicable in the case of the Enrica Lexie. As current practice stands, military forces abroad are entitled to immunity only under specific circumstances, which do not seem to occur in the present case. In particular, this article maintains that the Italian marines were not entitled to functional immunity. While the acts they performed did indeed fall within their typical functions, they were exercised on behalf of a private subject and not on behalf of the Italian State.

Discrimination on the Ground of Age in Uganda: Analysing Madrama Izama v. Attorney General (Constitutional Appeal No.01 of 2016) [2019] UGSC 1 (14 February 2019)

Article 21(2) of the Ugandan constitution provides that ‘a person shall not be discriminated against on the ground of sex, race, colour, ethnic origin, tribe, birth, creed or religion, social or economic standing, political opinion or disability’. Article 21(3) defines discrimination to mean ‘to give different treatment to different persons attributable only or mainly to their respective descriptions by sex, race, colour, ethnic origin, tribe, birth, creed or religion, social or economic standing, political opinion or disability’. Age is not one of the grounds mentioned in Article 21 against which a person may not be discriminated against. In Madrama Izama v. Attorney General the Ugandan Supreme Court dealt with the issue of whether, notwithstanding the fact that age is not mentioned under Article 21, a person could argue that he has a right not to be discriminated against on the basis of age. The majority judgment answered that question in the negative whereas the minority judgments came to the opposite conclusion. In this article, the author highlights the strengths and weaknesses of the majority and minority judgments.

INCOME TAX: GROSS INCOME – CAPITAL VERSUS REVENUE, PROFIT-MAKING SCHEME OR FIXED/FLOATING-CAPITAL TEST?

The question of whether a receipt or accrual is of a capital nature or not has vexed the courts, legal minds and tax advisors for years. Simplifying or limiting the tests would provide greater certainty. According to some writers, the case of CIR v Pick ’n PayEmployee Share Purchase Trust (1992 4 SA 39 (A), 54 SATC 271, hereinafter “Pick ’n Pay”) seems to have finally limited the test incapital/revenue cases to the “profit-making scheme” test. However, in subsequent cases there is no suggestion that the scheme ofprofit-making test is the sole test. In Berea Park Avenue Properties (Pty) Ltd v CIR (1995 2 SA 11, 57 SATC 167) it is clear that the Appellate Division (as it then was) considered a profit-making scheme and trading stock in one breath, so to speak. In SARS v Knuth and Industrial Mouldings (Pty) Ltd (1999 62 SATC 65), a case heard in the Eastern Cape Provincial Division of the High Court dealt with the proceeds of the sale of shares. The case was concerned with the floating versus fixed-capital test, and Leach J opined (72) that the distinction“is often referred to in tax cases and can now be regarded as entrenched in our law”. Leach J referred to Pick ’n Pay, but only to the extent that sound commercial and good sense should prevail in selecting the tests applicable. It was held in Pick ’n Pay that if there is no trading then there can be no floating capital. The trading stock definition was not considered in the majority judgment. The profit-making scheme test is only one way of establishing that an asset is trading stock. An asset acquired for the purpose of sale is tradingstock and the proceeds are gross income. That should, it is submitted, be the basis on which capital/revenue cases are decided. The scheme of the profit-making test is but one method of establishing intention at acquisition. It is submitted that the intention to make a profit, inherent in the concept of a profit-making scheme, is not essential to establish trading. “Gross income” is receipts and accruals, not profits. The majority judgment in this case is, it is submitted, flawed in that it did not consider this reality. For years the courts have vacillated between the “floating capital/fixed capital” and “profit-making scheme” tests to establish whether the proceeds of the disposal of an asset is of a capital or revenue nature for the purpose of establishing gross income as defined in the Income Tax Act 58 of 1962. Pick ’n Pay seems to have finally limited the test of whether proceeds are of a capital or revenue nature to the “profit-making scheme” test. This note questions that submission by examining the concepts and application of the two tests, trading stock, Pick ’n Pay and subsequent capital/revenue cases.

A CRITICAL ANALYSIS OF THE DECISION OF THE CONSTITUTIONAL COURT* Maphango v Aengus Lifestyle Properties (Pty) Ltd 2012 (3) SA 531 (CC)

The pursuit of access to better economic opportunities such as decent jobs has resulted in an astronomic influx of people into the inner city of Johannesburg, South Africa. As a result there is a high demand for rental housing. This presents an opportunity to make profit for those who leasepremises in order to generate an income. The demand for rental housing has arguably caused the escalation of rental prices, thereby causing a shortage of affordable rental housing in the city centre. The Rental Housing Act 50 of 1999 was enacted to resolve disputes that may arise from any unfair practice or matters affecting the relationship between the landlord and his tenants in respect of the lease contract. In particular, the Rental Housing Act seeks inter alia to “create mechanisms to promote the provision of rental-housing property; promote access to adequate housing through creating mechanisms to ensure the proper functioning of the rental-housing market [and] to lay down general principles governing conflict resolution in the rental-housing sector” (Preamble to the Rental Housing Act). In terms of the Rental Housing Act, the landlord or a tenant may approach the RentalHousing Tribunal and complain about an unfair practice (s 13 of the Rental Housing Act). The Rental Housing Act defines an unfair practice as “a practice unreasonably prejudicing the rights or interests of a tenant or a landlord” (s 1 of the Rental Housing Act). Where the Tribunal, at the conclusion of the hearing, is of the view that an unfair practice exists, it may rule that the exploitative rental be discontinued. The Tribunal may also make a determination about the amount of rental that must be paid by a tenant taking into account inter alia “the need for a realistic return on investment for investors in rental housing”. The argument presented in this case is that the applicants ought to have made up their case in the court of first instance and not at the appellate stage. The paper isdivided into nine sections. Section 2 provides an overview of the facts of the case, section 3 discusses the case before the High Court, section 4 discusses the case before the Supreme Court of Appeal (SCA), section 5 discusses the case in the Constitutional Court, the issues, arguments, before the court, the findings and conclusions of the court. Section 6 evaluates the parties’ submissions in light of the Rental Housing Act, the Constitution, the Gauteng Unfair Practices Regulations, and the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIEA) (19 of 1998). Section 7 discusses the majority judgment. Section 8 discusses the minority judgment. Section 9 is a critique of both the minority and majority judgments. The conclusion made is that the applicants should stand or fall by the arguments contained in the founding documents.

JUDICIAL RECOGNITION OF THE APPLICATION OF THE MAXIM RES IPSA LOQUITUR TO A CASE OF MEDICAL NEGLIGENCE Lungile Ntsele v MEC for Health, Gauteng Provincial Government (unreported as yet, Case Number: 2009/52394 (GSJ) dated 24 October 2012)

It is trite law, in context of medical negligence, that the onus of establishing civil liability on the doctor’s part lies with the patient and liability must be established on a preponderance of probabilities. It is to be noted that, should the plaintiff be unable to prove his/her case on a preponderance of probabilities, judgment will be given in favour of the defendant; a court may, however, also order absolution fromthe instance. In delict, the plaintiff bears the onus to prove a wrongful act/omission on the part of the physician, as well as the element of fault (in the form of negligence) and that the act or omission caused him to suffer damages or personal injury. Where a defendant raises a special defence such as consent, contributory negligence or prescription, the onus of proof will be on the defendant. Generally, however, the application of the maxim of res ipsa loquitur is treated by the courts as a particular form of inferential reason, requiring careful scrutiny and giving rise to an inference of negligence rather than a presumption of negligence. The South African courts thus far have been reluctant to apply the maxim to cases of medical negligence, despite persuasive legal arguments that have been put forward that the maxim should be applied in specific circumstances with regard to the proof of medical negligence. In this respect general principles for the effective application of the maxim in cases of medical negligence, are, inter alia, that principles of procedural equality and constitutional considerations dictate that the maxim be applied in cases of medical negligence. It is for this reason that the present judgment under discussion (in tandem with s 27 of the Constitution) is instructive, despite the majority judgment of the Appellate Division (as it wasthen) in 1924, in Van Wyk v Lewis (supra), where it was held that the maxim does not find application in cases of medical negligence.

Human Factors of Democracy

This chapter takes a new look at different voting methods, asking not how they work but rather how well they let voters express themselves. The most widely used method in the world (“choose one candidate”) is by far the worst at allowing voters to express themselves. This type of ballot has the vocabulary span of a six-month-old infant. Widely used rank-order ballots are modestly better (about the vocabulary of a two-year-old child) but are still very weak as communication devices. New forms of voting, including range voting and majority judgment (where voters grade the choices), offer vastly more ways for voters to express their true sentiments about the choices offered to them. This chapter also assesses how well voters are likely to understand exactly how voting systems work, possibly affecting their trust of the process.

The contract-delict interface and harm-causing omissions

Dale Hutchison co-authored two excellent articles on the contract– delict interface. Their focus was primarily on breaches of contract causing pure economic loss. This article extends the investigation to omissions which are in breach of contract and which cause physical harm to person or property. At the centre of the investigation is the Supreme Court of Appeal’s (majority) judgment in the case of Chartaprops 16 v Silberman 2009 (1) SA 265 (SCA). A harm-causing omission will be wrongful, for the purpose of delictual liability, only if it was in breach of a specific duty. To date, our law has recognised only a small number of such specific duties. The Chartaprops judgment seems to recognise another, arising – in a way which is not clearly explained in the judgment – from the contractual duties by which the harm-causer and certain third parties are bound. In a series of steps, this article develops an account of that duty, culminating in the following formulation, which is meant to capture both the duty’s ground and its content: ‘If a person has contracted with another person to perform a task and knows (or ought to know) that the other person has contracted with him to perform that task in order to discharge a delictual duty owed by the other person to one or more further persons, then he owes those further persons a specific duty, the breach of which constitutes a wrong for the purposes of Aquilian liability, not to cause harm to them by negligently having contracted with the other person to perform that task and then failing to perform it.’